Lewis I Baach puc Bruce R. Grace
202 659 6742
bruce.grace@lewisbaach.com
April 26, 2013
The Honorable Andrew W. Klein
Chief Clerk and Legal Counsel to the Court
State of New York Court of Appeals
20 Eagle Street
Albany, New York 12207
Re: Mashreqhank PSC v. Ahmed Hamad AI Gosaihi & Bros. Co.,
No. APL-2013-00007
Dear Mr. Klein:
Pursuant to Rule 500.11(c)(2), defendant-counterclaimant Ahmed Hamad Al
Gosaibi & Bros. Co. ("AHAB") respectfully submits this letter in opposition to the
appeal by plaintiff-counterclaim-defendant Mashreqbank PSC ("Mashreq") from
the decision of the Appellate Division reversing Supreme Court's dismissal ofthis
action on grounds of forum non conveniens .1 Mashreq, which chose New York as
its forum and has a "principal place of business" here, told Supreme Court that
"New York was and still is a natural forum" for this dispute. Yet it now contends
that New York was, is and always has been such an inconvenient forum that the
entire matter must be dismissed. This is pure revisionist history. Mashreq has
decided it would be prefer to extricate itself from its own chosen forum in favor of
a later-filed parallel litigation that, until recently, appeared to be going well for it.
A more obvious case of forum shopping has likely never presented itself to this
Court.2
1 This letter is AHAB's submission as defendant-counterclaimant. As third-party plaintiff,
AHAB responds by separate letter to the letter submitted by third-party defendant Maan Abdul
Wahed AI Sanea ("Al Sanea").
2 As Mashreq notes, it won a judgment in the Court of First Instance in Dubai, UAE (Mashreq
Ltr. at 8). What Mashreq fails to note is that on April I, 2013, the Dubai Court of Appeal ordered
that further evidence must be taken in that proceeding on the authenticity of signatures on the
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The background facts and issues raised on the merits of forum non
conveniens are discussed in AHAB's letter responding to Al Sanea's letter brief,
and these facts and issues will not be repeated here. It must be noted, however, that
Mashreq has presented the allegations and record in this case in a way that is not
consistent with the counterclaim and the underlying facts. Instead, now that it has
decided that its chosen forum is not so desirable after all, Mashreq has put forward
a selective recitation wholly at odds with that counterclaim and that record.
In this letter, AHAB begins with a discussion of key facts and procedural
history pertinent to the Appellate Division's reversal of Supreme Court's sua
sponte dismissal of the first-party claims. It then makes the following points:
(1) Neither Mashreq nor Al Sanea is an aggrieved party with respect to the
retention of the first-party claims in this New York forum, and therefore
neither of them has standing to appeal the Appellate Division's ruling on
the first-party complaint and counterclaim to this Court. Mashreq brought
this claim, asserting that New York is a convenient forum, and it never
sought its dismissal or the dismissal of AHAB' s counterclaim in its
submissions to Supreme Court. Certainly the retention of these claims in
Mashreq's chosen forum cannot be said to aggrieve Mashreq. AI Sanea
has no cognizable legal interest in the first-party claims, and therefore it,
too, is not aggrieved.
(2) The Appellate Division's ruling regarding sua sponte dismissal will be
moot if this Court affirms the Appellate Division reversal of Supreme
Court's dismissal of the third-party claims on the merits. The key forum
facts pertinent to the third-party claims apply with equal force to the first-
Mashreq loan documents (which, AHAB contends, are forged). In any event, whatever the
eventual outcome in Dubai, the proceeding here is properly situated in this forum. If and when a
final judgment in favor of Mashreq issues from the Dubai courts, Supreme Court may then
determine the res judicata effect, if any, ofthatjudgment.
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party claims. Thus, if the third-party claim affirmance was correct, the
same facts support maintaining forum over the primary claim and
counterclaim.
(3) In any event, the Appellate Division correctly applied the law and drew
the proper line between VSL Corp. v. Dunes Hotels & Casinos, 70 NY2d
948 (1988), and Banco Do Est ado De Sao Paulo, S.A. v. Mendes Jr. Int 'I.
Co., 249 AD2d 13 7 (1st Dept 1998). In VSL Corp., this Court held that
Supreme Court may not, sua sponte, invoke the forum non conveniens
doctrine. In Banco Do Estado, the Appellate Division upheld a dismissal
of counterclaims on forum grounds where the plaintiff-counterclaim-
defendant had included the defense in its answer and had made it a
"clearly articulated motif' of its arguments on a motion to dismiss. Here,
Mashreq never raised the forum non conveniens defense in an answer, did
not argue it in its own motion to dismiss, and actively opposed it in its
filings in response to third-party defendant AI Sanea's forum motion.
Only on appeal, when Mashreq's gradual disaffection with New York
morphed into formal opposition, did Mashreq actually take the position
that the forum was improper. Coupled with AI Sanea's own failure to
move to dismiss the first-party claims, this procedural history puts the
case on the VSL Corp. side of the line.
BACKGROUND FACTS
Al Sanea, an AI Gosaibi relative by marriage and an employee of ARAB,
engaged in a series of purported dollar-denominated foreign exchange ("f/x")
transactions with Mashreq, which were in fact disguised short-term loans that
allowed AI Sanea to divert ever-increasing sums to his own accounts. After Al
Sanea pocketed Mashreq' s $15 0 million from the last of these f/x transactions by
stealing them from ARAB's New York bank account, and transferring it to a New
York account of a bank he controlled, Mashreq brought this action in New York.
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Mashreq also subsequently chose to file a separate action against the individual
partners in AHAB (the "AHAB Partners"), also in New York Supreme Court.3
Mashreq's assertion that it was "forced" to file here (Mashreq Ltr. at 6) is absurd;
it freely chose New York as its preferred forum, describing itself as a bank "that
has had a presence in New York for decades and that is entitled to the protections
of the laws of New York State." Affirmation of Adam Finkel, Esq., in Support of
Mashreq's Complaint,~ 14 (Docket No. 1). Its decision to file in New York was
entirely rational, in light of its presence amounting to a "principal place of
business" here (Complaint ~ 1) and the fix transaction took place here. Mashreq
then moved to dismiss the counterclaim, raising various substantive defenses not
including forum non conveniens. AHAB promptly brought its third-party
complaint and counterclaim.4 Mashreq then moved to dismiss the counterclaim,
raising various substantive defenses not includingforum non conveniens.
Separately, Al Sanea moved to dismiss the third-party complaint, and only
the third-party complaint, on forum non conveniens as well as jurisdictional
grounds. There followed a series of filings by all three parties. In its memoranda,
Mashreq was at pains to emphasize that New York is a proper and convenient
forum for the claims between Mashreq and AHAB. No party ever briefed the
converse with respect to the first-party action, because it was common ground
between AHAB and Mashreq that the New York forum was proper as to that
action. Although at one point Al Sanea suggested that the court might also wish to
3 The AHAB Partners, who, unlike AHAB, actively contested personal jurisdiction, did not file
any counterclaims or third-party claims. Supreme Court also dismissed sua sponte Mashreq's
complaint against the AHAB Partners on forum non conveniens grounds. The AHAB Partners
could not have appealed that ruling as they were not aggrieved parties, and Mashreq chose not to
do so. (Mashreq, which is not an aggrieved party here, misunderstands this concept when it
complains that the AHAB Partners did not appeal the dismissal. (Mashreq Ltr. at 6 n. 6)).
4 In its Answer, AHAB included a number of routine affirmative defenses, including lack of
personal jurisdiction. Obviously, by bringing a counterclaim and a third-party complaint, it
waived its jurisdictional defense, and it subsequently advised the court that the defense was
waived. Mashreq's arguments about personal jurisdiction are mere distractions. (R. 1477).
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dismiss the first-party claims (describing himself as "an amicus of the Court," Oral
Argument Transcript, Mar. 25, 2010, at 6; R. 1451, not as a party making a formal
motion with respect to the first-party claims), AI Sanea's only genuine concern was
with AHAB' s third-party complaint against him, and he had no cognizable interest
one way or the other in a dismissal of the claims between Mashreq and AHAB.
A. The Positions Taken in the Briefing
Six memoranda were filed on the forum non conveniens issue, and their
pertinence to the propriety of first-party claims remaining in this forum was as
follows:
• AI Sanea's motion to dismiss the third-party claims (Oct. 30,
2009) (Docket No. 44). Al Sanea's notice of motion stated that he
sought to "dismiss [] the Third-Party Complaint in its entirety" on
jurisdictional and forum grounds and made no mention of the dispute
between Mashreq and AHAB. (R. 65). In his accompanying
memorandum, AI Sanea argued on forum grounds that the claims
against him should be litigated in Saudi Arabia. He nowhere requested
a dismissal of claims as between AHAB and Mashreq. To the
contrary, Al Sanea argued that AHAB 's counterclaims "have no
bearing" on "whether this dispute, between AHAB and Mr. Al-Sanea,
should be litigated in Saudi Arabia rather than New York." (Al Sanea
Mem. at 6 n. 6) (emphasis in original).
• AHAB's opposition to AI Sanea's motion to dismiss (Feb. 5, 2010)
(Docket No. 82). AHAB opposed dismissal of the third-party claims
on grounds that the entire case belonged together and the claims
against Mashreq (which had not sought dismissal on forum grounds)
could not be tried in Saudi Arabia. (AHAB Mem.8-13; 18-21). AHAB
asserted that the dispute had significant and material connections to
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New York, including the fact that the dollar-based f/x transactions
occurred there and the funds themselves had been stolen in New York.
ARAB also asserted that the dispute could not be tried in a single
action, either in Saudi Arabia or the UAE.
• AI Sanea's reply in support of his motion to dismiss (Mar. 9, 2010)
(Docket No. 105). In his reply, Al Sanea observed in passing that
Mashreq's claim could be litigated in "more convenient fora ... and
thus, should be dismissed" but then turned to his main contention that
"there is no requirement that [ARAB'] third-party claims be tried in
the same forum as the first-party action." (Al Sanea Mem. at 8).
• Mashreq's memorandum in response to Supreme Court's request
in connection with AI Sanea's motion to dismiss (Mar. 9, 2010)
(Docket No. 103). At a hearing on January 5, 2010, Mashreq advised
the court that it had not participated in the briefing because "no one
has made a forum non motion against my client Mashreqbank."
(Decision at 1 0). The court expressed its desire to hear from Mashreq
on Al Sanea's motion. (See Decision, dissenting opinion, at 24.
Accordingly, Mashreq filed a memorandum arguing that, whatever
might be done with the third-party complaint, its own case should not
be dismissed. Mashreq contended (Mashreq Mem. at 6-8):
New York was and still is a natural forum for Mashreq to
bring its straightforward claims against ARAB ... New
York courts defer to a plaintiffs choice of forum 'absent
a balance of factors strongly favoring' dismissal. .. ARAB
also expressly agrees that New York is a convenient
forum to litigate Mashreq's claims ... Nor will Mashreq's
claims against ARAB require the translation of many
documents or testimony from Arabic to English ...
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Mashreq's claims ... do not implicate complex issues of
foreign law ..
• AHAB's response to Mashreq's memorandum in connection with
AI Sanea's motion to dismiss (Mar. 18, 2010) (Docket No. 112). In
response to Mashreq's filing, ARAB stated: "As Mashreq's brief
makes clear, New York is the proper forum for all aspects of this
dispute." (ARAB Mem. at 6-8). ARAB further noted that Mashreq's
position on the merits of the counterclaim "in no way suggest[ s] that
New York is an inconvenient forum for litigation of the
counterclaim." (!d. at 1 & 1 n. 1 ). ARAB devoted the rest of its
submission to its contention that its claim against Al Sanea is too
closely intertwined with the ARAB-Mashreq dispute to be dismissed.
• Mashreq's reply memorandum in further response to AI Sanea's
motion to dismiss (Mar. 23, 2010) (Docket No. 115). Mashreq filed
a "reply" which stated again that "New York is a proper forum for
[Mashreq's] claims against ARAB and the ARAB partners" but noted
if the court were to dismiss the third-party complaint, "Mashreq
would not object to litigating its dispute with ARAB and the ARAB
partners in the UAE" - that is, not in Saudi Arabia, the alternative
forum proposed by AI Sanea. And nowhere in its memorandum did
Mashreq argue that the traditional factors governing forum non
conveniens supported dismissal of the first-party claims. (Reply Mem.
at 3) (emphasis added).
In short, Mashreq never argued in favor of a dismissal of the first-party
claims on forum non grounds. From beginning to end, it urged the court to find that
New York is a proper forum for these claims. And it never conceded that AI
Sanea's proposed alternative forum, Saudi Arabia, was available. AI Sanea himself
never filed a motion to dismiss the case in the entirety, despite every opportunity to
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do so, and he never argued the factors that would support such a dismissal, and he
never proposed an alternative forum for the entire case. AHAB never had occasion
to, and never did, brief the merits of whether the first-party claims were properly
brought in New York.
B. Oral Argument on AI Sanea's Motion (Mar. 25, 2010)
Mashreq contends that Supreme Court, at oral argument, "unambiguously
indicated to the parties" that it had "the power and discretion to dismiss the entire
action" based solely on AI Sanea's motion. (Mashreq Ltr. at 9). No such
unambiguous "indication" took place, and if the court had asserted such authority,
it would have been without legal basis. As the record shows, AHAB 's counsel
understood the court to be suggesting that Mashreq would be free to bring a forum
non conveniens motion ifthe court were to grant AI Sanea's motion:
If I could put it this way, are you asking if you were inclined to ...
grant Mr. AI Sanea's motion, would we then, say, "Let Mashreq
make the motion as well. Let's all leave. My answer to that is, no."
(R. 1473-74) (emphasis added).
Thus AHAB's counsel demonstrated his understanding that the claims involving
Mashreq would require a separate motion, and neither the court nor the other
parties asserted to the contrary.
Moreover, at oral argument, Mashreq's counsel stated, "we still believe our
contract claim would be legitimately litigated here" (R. 1465), and, further, that
Mashreq "is not subject to jurisdiction in Saudi Arabia" (R. 1468). Thus, Mashreq
never deviated from its position that both its complaint and the counterclaim were
properly brought in New York, and it never consented to be sued in a forum
outside New York that would permit litigation of both the Mashreq-AHAB claims
and the AHAB-Al Sanea claims in the same lawsuit.
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ARGUMENT
I. Neither Mashreq Nor AI Sanea Has Standing to Appeal the Dismissal of
the First-Party Claims.
CPLR 5511 provides that only "[a]n aggrieved party or a person substituted
for him may appeal from any appealable judgment or order .... " Mashreq is simply
not aggrieved by a decision finding that its own complaint was properly filed in a
New York court. Sirius Am. Ins. Co. v. Vigo Canst. Corp., 48 AD3d 450, 451 (2d
Dept 2008) (dismissing cross-appeal of party which did not file its own motion
where adversary's motion was denied). Al Sanea is not a party to the first-party
claims and thus is also not aggrieved by the Appellate Division's disposition of
them. D'Ambrosio v. City of New York, 55 NY2d 454, 459-60 (1982); see A.
Karger, The Powers of the New York Court of Appeals, § 11:6 (3d ed. 2005).
Mashreq, which consistently argued in Supreme Court that its complaint
could not be dismissed on forum grounds, was certainly aggrieved by the original
dismissal, just as AHAB was. However, it did not appeal from that decision, and
therefore it has no right to appeal to this Court. "The general principle is that a
party who has not appealed from the determination of the court of first instance to
the Appellate Division is precluded from obtaining review of any part of that
determination on a subsequent appeal." Karger, § 11:9. Nor did it become an
"aggrieved party" pursuant to the meaning of CPLR 5 511 by virtue of the
Appellate Division's decision reversing Supreme Court's dismissal, because that
decision upheld the very position Mashreq took in Supreme Court. The fact that
subsequent developments in Dubai appear to have caused Mashreq to reverse its
position does not tum it into an aggrieved party. Whether a party is aggrieved for
purposes of the right to appeal is determined by the party's position in the lower
court, not by the party's later change of heart leading it to try to reverse positions.
See Daniels v. City of New York, 7 NY3d 825 (2006) (party which did not appeal
to Appellate Division is not a party aggrieved); Hecht v. City of New York, 60
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NY2d 57 ( 1983) (appeal is limited to the provisions of the judgment that actually
aggrieve the appellant).
Mashreq is also not aggrieved by the Appellate Division's ruling that Al
Sanea is properly sued in New York, because the presence or absence of Al Sanea
is of no import to Mashreq; and, by the same token, Al Sanea cannot be aggrieved
by any disposition of the first-party action. Duffy v. Horton Mem 'l Hasp., 66 NY2d
473, 476 n.3 (1985) (where the third-party complaint is not affected, the third-
parties "are not parties aggrieved, and their appeal should be dismissed");
Mahmood v. Gutman, 81 AD 3d 792 (2d Dept 2011) (plaintiff was not an aggrieved
party with regard to the trial court's dismissal of the third-party complaint).
Accordingly, as neither Mashreq nor Al Sanea are aggrieved parties, and as neither
preserved the argument in any event, the issue of whether the first-party claim
should have been dismissed is not properly before this Court, and ARAB
respectfully submits that the judgment of the Appellate Division on this issue
should be affirmed on this ground alone.
II. If the Court Affirms Retention of the Third-Party Claims, the Issue of
Whether the First-Party Claims Were Improperly Dismissed Sua
Sponte Will Be Moot.
Indisputably, most of the forum factors are common to both the first-party
and third-party claims, especially New York's compelling interest in protecting its
banking system from abuse like its use to structure and conduct AI Sanea's f/x
fraud as aided and abetted by Mashreq. To the extent those factors may differ,
there is no record as to what those differences might be and thus no evidentiary
basis for a conclusion that they would justify a dismissal of the first-party claims
on forum grounds.
In these circumstances, if this Court were to affirm the Appellate Division's
decision to retain the third-party claims in this New York forum, it would have
implicitly found that there would be no basis for dismissing the first-party claims,
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and the procedural issue of whether Supreme Court improperly acted sua sponte in
dismissing the first-party claims and counterclaims would be rendered moot.
III. Supreme Court Did Not Have Discretion to Dismiss the Action Between
Mashreq and AHAB Sua Sponte.
The Appellate Division below faithfully followed this Court's holding in
VSL Corp. v. Dunes Hotels & Casinos, 70 NY2d 948, 949 (1988), which instructs
that a court may not invoke the doctrine of forum non conveniens except on motion
of a party. The Appellate Division found, and no party contests, that there was no
motion to dismiss the first-party claims on forum grounds. (Decision at 9).
Mashreq argues that this uncontroverted fact does not matter in light of Supreme
Court's request for submissions from Mashreq regarding its position on the forum
issue. But if Supreme Court's request was intended to put into play whether the
first-party claims should be dismissed on forum grounds, it quintessentially
constituted sua sponte action, given that no party moved for such dismissal in
response to the court's invitation. To the contrary, the response Mashreq made to
the court's invitation was to reject any implication that the main action was not
properly brought and maintained in New York. 5
The Appellate Division has read VSL as imposing substantive compliance
with the requirement that courts may not dismiss sua sponte on forum grounds. In
Banco Do Estado De Sao Paulo, S.A. v. Mendes Jr. Int'l. Co., 249 AD2d 137, 138-
39 (1st Dept 1998), the plaintiff styled its motion as one for summary judgment on
defendant's unrelated counterclaims but did not formally specify forum non
5 Here as elsewhere, Mashreq asserts that the Appellate Division's characterization of events is
"erroneous" and then studiously ignores what the Appellate Division actually said. Mashreq
claims that the Appellate Division did not acknowledge that "all parties submitted briefing" on
the forum issues (Mashreq Ltr. at 9 n. 8), when, in fact, the Appellate Division discussed that
briefing more accurately than Mashreq does. The Appellate Division correctly noted that "when
Mashreqbank finally briefed the forum non conveniens question with regard to Al Sanea's
motion, Mashreqbank argued against dismissal of the main action .... Mashreqbank, as plaintiff in
the main action could have moved the court to withdraw the action in its entirety. Mashreqbank,
however, continued to argue that New York was the appropriate forum." (Decision at 1 0-11 ).
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conveniens as a ground for such dismissal, although it had raised it as an
affirmative defense to the counterclaim. Nonetheless, plaintiff included full
briefing and argument dismissal on that basis. The court found that the plaintiff
had argued forum non conveniens as "a clearly articulated motif of plaintiffs
arguments in the motion proceedings." Id. at 139. It was on this basis, and not on
sua sponte action by the court, that the counterclaims could be dismissed.
Similarly, in Matter of Smith v. Miller, 237 AD2d 294, 295 (2d Dept 1997), the
Appellate Division permitted Supreme Court to consider a forum issue without a
formal motion having been made, not sua sponte, but on the ground that "the
doctrine was raised before the court, and the parties contested the matter." Here, by
contrast, the "motif' of Mashreq's motion to dismiss was anything but one of
forum non conveniens, and the matter was never genuinely contested. To the
contrary, Mashreq affirmed that New York is the proper forum.
The Appellate Division (although not this Court) has also held that a third-
party defendant may move to dismiss an entire action on forum grounds, e.g.,
Imperial Imports Co. v. Hugo Neu & Sons, 161 AD2d 411 (1st Dept 1990). But
that did not happen here. (See Decision at 9). As Mashreq acknowledges, Al
Sanea's motion was only "to dismiss AHAB's third-party complaint." (Mashreq.
Ltr. at 9). But in no case has the Appellate Division, or this Court, permitted a
dismissal on forum non conveniens grounds where no party had moved to dismiss
the claim on those grounds, either by formal motion or by a motion implicit in a
party's briefs and arguments, and where the substance of the issue as it relates to
those claims was neither briefed nor argued by the interested parties.
Mashreq's position is that aforum non conveniens dismissal may be made
sua sponte if the court has provided the parties "a full and fair opportunity to
litigate the issue." (Mashreq Ltr. at 22). Even if that were the test- and it is not-
no such opportunity existed here. Although Supreme Court made its unhappiness
clear, it never clearly said that it was contemplating a dismissal of the entire action
on forum grounds even if no party moved for such relief. AHAB 's counsel, by his
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statement at oral argument indicating his understanding that an actual motion by
Mashreq would be required, showed that it was never communicated directly that a
dismissal of the main case was at issue. There is no way to read this record as an
unequivocal "full and fair opportunity to litigate the issue."
Furthermore, VSL Corp. does not say that a court may dismiss on forum
grounds on its own motion so long as it provides the parties with a "full and fair
opportunity" to be heard. It states that the court may dismiss on forum non grounds
"only upon the motion of a party" and that "a court does not have the authority to
invoke the doctrine on its own motion," 70 NY2d at 949. No matter how full or
fair the opportunity to be heard, a court simply is not permitted to decide the issue
on its own motion. It may, presumably, invite a party to file a motion to dismiss,
and one might suggest that it invited Mashreq to do so at the January 25 oral
argument; but Mashreq emphatically rejected that implicit invitation and AI Sanea
chose not to expand his own motion so as to include the first-party claims.
Therefore, the court did not have the authority to proceed on its own motion to
dismiss the entire case.
This very case demonstrates the beneficial effects of the rule stated in VSL.
A rule directing parties to take an unequivocal position by making a motion is
vastly preferable to a rule which permits counsel to hedge their bets, leaving a
window open to argue later that, in hindsight, the parties had a "full and fair
opportunity" to litigate. That sort of rule only encourages disputes about what
"really" happened when the simple act of making a motion would resolve all
doubt. Mashreq's slow-motion change of position cannot disguise the fact that its
contention that its own complaint should be dismissed on forum grounds is the
opposite of the position it took on AI Sanea' s motion.
A party advocating the forum defense, moreover, has a "heavy burden," not
merely of demonstrating that "New York may be an inconvenient forum," but of
showing "compelling circumstances" to warrant the rejection of the plaintiffs
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choice of forum. Banco Ambrosiano, S.P.A. v. Artoc Bank & Trust Ltd., 62 NY2d
65, 74 (1984). Once jurisdiction has been established, as here, there is no right to a
dismissal, nor is there a strong public policy against hearing the case. To the
contrary, the party advocating a New York forum should be permitted to make its
best case. This means that there should be no sandbagging or after-the-fact
declarations that the parties had a "full and fair opportunity" to litigate. Simply put,
there are no countervailing considerations against requiring a party to make a clear
and express declaration that it seeks a dismissal on forum grounds.
In sum, there was no motion to dismiss either Mashreq's complaint or
AHAB' s counterclaim on forum non conveniens grounds. The possibility of a
dismissal of the main case was raised only by Supreme Court itself, acting sua
sponte, on January 25. Thus, Supreme Court's dismissal of the main case was well
outside the rule of VSL Corp. The Appellate Division was correct, both in a
technical sense, to reverse on this ground, and also because the demands of due
process are served where genuine notice, by motion, is provided to all parties
before a case is dismissed.
IV. In Any Event, There Is No Basis under the Applicable Forum
Factors for Dismissing this Case.
As set forth in detail in ARAB's letter in response to Al Sanea's letter, the
Appellate Division acted correctly in applying relevant New York law to the forum
non conveniens analysis. Mashreq had a clear basis for asserting its claims in New
York, which is the only jurisdiction where the claim, counterclaim and third-party
claims can all be litigated in one forum. Moreover, Al Sanea's Ponzi scheme
involved more than $5 billion of f/x transactions that could not have been carried
out elsewhere. Fraudsters like Al Sanea take advantage of the global nature of
international banking to avoid scrutiny and accountability in any forum. Here, he
not only designed these transactions to facilitate his ability to raise liquidity that he
could siphon from AHAB, he stole the very res at issue, $150 million sitting in a
New York bank account, that he then diverted to a New York account in a bank he
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controlled. This was an electronic bank robbery that took place in New York. The
Appellate Division was reflecting the strong and responsible vision of this Court in
asserting the compelling interest in New York to adjudicate this matter.
CONCLUSION
Neither Mashreq nor AI Sanea is aggrieved by the Appellate Division's
reversal of Supreme Court on this issue and, hence, both lack standing to contest
that reversal before this Court. Further, the Appellate Division correctly applied
this Court's decision in VSL Corp. in ruling that Supreme Court improperly
dismissed the first-party claims between Mashreq and AHAB by sua sponte
motion.
Respectfully submitt ,
~
Bruce R. Grace
cc: All Counsel ofRecord
WASHINGTON NEW YORK LONDON BUENOS AIRES
J,;j
FSC
NEW YORK STATE COURT OF APPEALS
---- - - ------ -- - ---------- --- ----){
MASHREQBANK PSC,
Plaintiff-Counterclaim-Defendant,
v.
AHMED HAMAD AL GOSAIBI &
BROTHERS COMPANY,
Defendant-Counterclaimant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
AHMED HAMAD AL GOSAIBI &
BROTHERS COMPANY,
Third-Party Plaintiff,
v.
MAAN ABDUL W AHEED AL SANEA,
Third-Party Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
No. APL-2013-00007
AFFIRMATION OF
SERVICE
JOSEPH L. RUBY, an attorney duly admitted to practice in the courts of the State
of New York, hereby affirms, under penalty of perjury pursuant to CPLR 2106,
that the following statements are true and correct:
1. I am a partner in the law firm of Lewis Baach PLLC, 1899
Pennsylvania Ave, N.W., Suite 600, Washington, D.C. 20006, attorneys for
Ahmed Hamad Al Gosaibi & Brothers Company ("AHAB") in the above-
captioned action. I am over eighteen years of age, not a party to this action, and
reside in Silver Spring, Maryland.
2. On April 26, 2013, I served copies of third-party plaintiff I defendant-
counterclaimant AHAB' s letters in opposition to the appeal by third-party
defendant Maan Abdul W ahed Al Sanea and plaintiff-counterclaim-defendant
Mashreqbank PSC from the decision of the Appellate Division reversing Supreme
Court's dismissal of this action on grounds of forum non conveniens and
affirmation of service, served by Federal Express upon counsel identified below:
Robert F. Serio
GIBSON, DUNN & CRUTCHER LLP
200 Park A venue
New York, New York 10166
Attorneys for Maan Abdul Wahed Al Sanea
Carmine D. Boccuzzi
CLEARY GOTTLIEB STERN & HAMIL TON LLP
One Liberty Plaza
New York, New York 10006
Attorneys for Mashreqbank PSC
Dated: April 26, 2013
oseph L. Ruby
2